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Whistleblowing in the Workplace 8 April 2014

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Whistleblowing in the Workplace Chair Ian O’Herlihy, Head of Employment & Benefits

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Whistleblowing The Proposed Legislative Framework Elizabeth Ryan, Partner

e: eryan@mhc.ie

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Position Pre-Act

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Position Post-Act

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Title •

Position in the Market •

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Kljklj •

Hkjhjk

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Penalisation

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Potential Difficulties

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Next Steps

Matters which constitute a protected disclosure

The manner in which workers are protected

The investigation procedure (could contain a formal or informal step)

The procedure for raising a concern externally

Request for anonymity

Link to disciplinary procedure

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Whistleblowers and Data Protection Jeanne Kelly, Partner e: jkelly@mhc.ie

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The Data Protection Angle

Why is this controversial at all?

Subject access rights (she said WHAT about me?!)

Fairness in data collection (Data Protection Acts)

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The Data Protection Angle

Whistleblowing not new

Sarbanes-Oxley Act (US) 2002

Dodd-Frank Wall Street Reform and Consumer Protection Act 2010 (incentives!)

Our experience: how does it become an Irish compliance issue?

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Whistleblowing Hotlines

EU/US tension in approach

And: No EU passporting possible Do you seek forgiveness, or ask permission?!

CNIL France 2005 McDonalds France +Exide Tech 2009 Dassaut Systemes

Germany?(Wal-Mart) Sweden? (Key execs only)

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Data Protection Issues Article 29 Working Party: who are they and what solutions had they? WP 117 •

Whether w/b hotlines can co-exist with DP laws?

Focus on financial issues/crimes

Transfers abroad

Fair processing

Proportionality

Consequences for the data subject

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Data Protection Issues WP 117 •

Privacy by design

Limits: who can use, who can be reported

If no evidence, destroy data after 2 months

If wrongdoing uncovered, keep data until end of resulting process

Regulator clearance may be needed

Secure processing transfer contracts

Local filtration 17


Data Protection Issues Irish Data Protection Commissioner Guidance (March 2006) Focus on Issues not Individuals • Consider the DP implications • Data minimisation approach • No encouragement of anonymous whistleblowing • Tell your employees • Anti-blowback measures • Transfers abroad

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The Protected Disclosures Bill and Data Protection

Does it cut through the data privacy issues?

Not a defence to a DP breach to say complied with the new Bill.

What happens if whistle-blower identity is revealed? (Section 16)

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Takeaways

• S.21 Public bodies must design schemes to deal. • Those schemes must still be DP complaint. • You may need to re-calibrate your existing DP documents • If outsourcing, robust contracts needed. • Approach in a “privacy by design” and “HR compliance by design” manner

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Dealing with a Whistleblowing Investigation by a Third Party Catherine Allen, Partner e: callen@mhc.ie

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Why will Third Parties be Involved?

• Section 7 of the Protected Disclosures Bill

• Prescribed persons: • • • • •

An Garda Síochána; Office of the Director of Corporate Enforcement; Health and Safety Authority; Health Information and Quality Authority; National Consumer Agency…?

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Why will Third Parties be Involved?

• Section 19 of the Criminal Justice Act 2011 • Mandatory reporting for certain types of offences • Applies to everyone • No express defence of legal professional privilege • Awaiting Law Society Guidance

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Third Party Investigations

• May be happy to rely on an internal investigation pending developments • Preservation of evidence • Witness interviews – privilege against self-incrimination

• Separate legal representation may be necessary

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Third Party Investigations

External investigation

May have to be dealt with in a similar fashion to a dawn raid

Expensive and lengthy process.

Investigators have to produce a: • • •

Coherent, Accessible, and Traceable record of the files of and interactions between suspects.

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BCCI Investigation •

Largest bank fraud in history (over 3,000 criminal customers, money laundering, terrorist financing etc)

100 million documents found in London

9,000 boxes containing several million pages of documents (some handwritten notes in various Arabic dialects) found in New York and Miami

Even more documents in the Grand Cayman Islands

And … most of the documentation had in fact been shredded, destroyed or removed from the bank’s head office in London and flown to Abu Dhabi in 1990. 26


Corporate Criminal Liability

• Absolute / strict liability offences • Identification doctrine

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Takeaways

• Be aware of your section 19 CJA 2011 obligations • Have a process for making section 19 reports • Have a process for dealing with: • •

internal investigations that may lead to criminal prosecutions; and external investigations (similar to dawn raid processes)

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Q&A Elizabeth Ryan, Partner

Catherine Allen, Partner

Jeanne Kelly, Partner

e: eryan@mhc.ie

e: callen@mhc.ie

e: jkelly@mhc.ie

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